Jeff looked up from his notebook, let out a sigh and allowed himself to smile. It was the greatest idea ever … he was sure of it. This was the one … easy to patent, unique ways to reduce it to practice, and everyone schooled in the art will be jealous as they agree that, if only they'd thought of it they'd be rich. What an awesome day!
What to do now? A patent attorney – but which one? Jeff decided to call a guy he met at an industry event a few weeks earlier. He was a savvy investor, he'd know exactly who to retain. This was going to rock!
You know the end of this story. They create a start-up, file for a patent or two, raise some money and live the American Dream. This is "the" fantasy of every inventor, tinkerer, entrepreneur, VC, private equity professional, etc. Sometimes it has a happy ending, sometimes it doesn't, but the great thing about it is that the existing intellectual property laws and the United States Patent Trademark Office combine to make a powerful platform for innovation and entrepreneurship.
Today, everyone can dream this dream and, with hard work and a little luck, they can translate the value of their intellectual property into wealth.
Sadly – this is all about to change.
A while back I received an email from my friend, Gary Lauder. He's a VC, technologist, inventor and multiple patent-holder. He wanted my help getting the word out about pending legislation called The America Invents Act (HR 1249). The title of this bill sounds like it portends something great for American Inventors – I assure you it does not.
As Gary brilliantly articulates in an interview on Shelly Palmer Digital Living The Podcast, The America Invents Act may seriously harm your ability to protect and profit from your ideas.
First, the end of "first to invent." Under the current law it doesn't matter when you file your patent application, you are protected the moment you come up with a description of your idea. What this means is that, here in America, you can file your patent after your competitor files, but be granted the patent because you can prove that your notes and demonstration materials were created before your competitors notes and demonstration materials were created.
Under the new law the patent will be granted to the "first to file," just like it is in Europe. This may not sound so bad, but it is. Why? Because it will require every inventor to be in stealth mode until they file for their patents. How will an individual come up with the thousands of dollars required to file a patent without talking to an investor first? Worse yet, telling anyone (colleague, teacher, supplier, business associate) about your idea would enable them to steal it from you just by beating you to the patent office and applying under someone else's name that you don't recognize (so you can't prove that the applicant derived it from you). Hackers can also do this to you w/o your knowledge. This is anti-innovative, anti-collaborative, anti-small business and just plain bad.
Does "first to file" hurt big companies? Not nearly as much. Big companies have research and development departments, internal confidentiality agreements and teams of lawyers on staff – the two kids in the proverbial "garage" inventing a practical cold fusion reactor probably don't. America was built on a model of open innovation – this proposed legislation is going to make it a thing of the past.
According to Gary, "Other changes will make it easier to accidentally lose the ability to obtain a patent (e.g. if you offer your invention for sale or publicly use it), will more easily enable an infringer to defend themselves by showing such actions prior to the plaintiff's application, and will enable infringers to postpone the issuance of other's patents by filing expensive post-grant review procedures ... which can also cost a company more than they can afford."
The deeper you dive into HR1249, the more you realize that this bill is absurd. If you want to know more, I urge you to visit http://www.lauderpartners.com/PatentReform/. Gary does a great job explaining the issue.
If you want to contact your senators and voice your opposition to The America Invents Act (HR1249), visit http://www.reformaia.org/call, there you will find everything you need to reach them.
Time is of the essence. Senator Harry Reid filed cloture on the bill so that it will be the first up after the break, which ends on September 5, 2011. If you want to keep innovation alive for individuals and small businesses and preserve America's open model of innovation, contact your senators and tell them to vote NO on HR1249 – your voice will make a difference!
Shelly Palmer is the host of NBC Universal‘s Live Digital with Shelly Palmer, a weekly half-hour television show about living and working in a digital world. He is Fox 5 New York‘s On-air Tech Expert (WNYW-TV) and the host of Fox Television’s monthly show Shelly Palmer Digital Living. He also hosts United Stations Radio Network‘s, MediaBytes, a daily syndicated radio report that features insightful commentary and a unique insiders take on the biggest stories in technology, media, and entertainment. He is Managing Director of Advanced Media Ventures Group, LLC an industry-leading advisory and business development firm and the President of the National Academy of Television Arts & Sciences, NY (the organization that bestows the coveted Emmy® Awards). Palmer is the author of Television Disrupted: The Transition from Network to Networked TV 2nd Edition (York House Press, 2008) the seminal book about the technological, economic, and sociological forces that are changing everything and the upcoming, Overcoming The Digital Divide: How to use Social Media and Digital Tools to Reinvent Yourself and Your Career (York House Press, 2011) For more information, visit shellypalmer.com
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